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No. 03-724

In the Supreme Court of the United States

F. Hoffmann-La Roche Ltd., et al., Petitioners

v.

Empagran, S.A., et al.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

William H. Taft, IV Legal Adviser
United States Department
of State
Washington, D.C. 20520

1. Whether under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. 6a, the
Sherman Act applies to claims of foreign plaintiffs whose injuries
do not arise from the effects of antitrust violations on
United States commerce.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The Department of Justice and the Federal Trade
Commission have primary responsibility for enforcing the
federal antitrust laws, and thus they have a strong interest
in the correct application of those laws and in the effect of
judicial interpretations on antitrust enforcement programs.
The United States is concerned that the court of appeals'
holding will substantially harm its ability to uncover and
break up international cartels and undermine law
enforcement relationships between the United States and its
trading partners.

STATEMENT

1. The Antitrust Division of the United States Department
of Justice has a Corporate Leniency Policy that provides
amnesty from criminal prosecution in certain circumstances.
4 Trade Reg. Rep. (CCH) If 13,113 (Aug. 10, 1993);
<http://www.usdoj.gov/atr/public/guidelines/0091.htm>. In 1999,
one of the petitioners, Rhone-Poulenc SA, applied for
admission to the government's amnesty program for
Rhone-Poulenc's role in global price-fixing and
market-allocation conspiracies among domestic and foreign
manufacturers and distributors of bulk vitamins. In exchange for amnesty, the
company exposed the cartel, which had sold billions of
dollars of vitamins in the United States and other countries
around the world. The company cooperated with the United
States' subsequent investigations into violations by the
vitamin companies of Section 1 of the Sherman Act, 15
U.S.C. 1. Chemical Business NewsBase: Press Release,
Rhone-Poulenc issues statement regarding vitamin business,
available in 1999 WL 17728220 (May 26, 1999); U.S. Dep't Of
Justice Press Release, F. Hoffman-LaRoche and BASF Agree To
Pay Record Criminal Fines For Participating In International
Vitamin Cartel (May 20,1999) (Press Release).

To date, the investigation triggered by Rhone-Poulenc's
application for amnesty has resulted in plea agreements
with twelve corporate defendants and thirteen individual
defendants and the imposition of fines exceeding $900
million-- including the largest criminal fine ($500 million)
ever obtained by the Department of Justice under any
statute. Press Release, at 1-2. Eleven of the thirteen
individuals have received sentences resulting in
imprisonment, and an additional individual awaits a
criminal trial. European Union, Canadian, Australian, and
Korean authorities similarly have obtained record civil
penalties exceeding Î855 million against the vitamin
companies. Pet. 5; Pet. App. 68a.

In the wake of the government's investigations, domestic
private parties sued the vitamin companies seeking treble
damages and attorney's fees, see 15 U.S.C. 1, 15, 26, for
overcharges that the domestic companies paid in United
States commerce as a result of the price-fixing conspiracy. In
settlement of suits by some United States purchasers, the
vitamin companies paid amounts "exceeding $2 billion." Pet.
5; In re Vitamins Antitrust Litig., No. 99-197 TFH, 2000 WL
1737867 (D.D.C. Mar. 31, 2000).

2. Respondents are foreign corporations domiciled in
Ecuador, Panama, Australia, and Ukraine. Pet. App. 6a; Pet.
ii, 5; Br. in Opp. ii. They brought this class action on behalf
of purchasers of "vitamins abroad from the vitamin
companies or their alleged co-conspirators * * * for
delivery outside the United States." Pet. App. 6a. The
district court held (id. at 47a-53a) that it lacked subject
matter jurisdiction over respondents' claims against
petitioners under the Foreign Trade Antitrust
Improvements Act of 1982 (FTAIA), 15 U.S.C. 6a, which
provides that the Sherman Act shall not apply to
non-import foreign conduct unless it has "a direct,
substantial, and reasonably foreseeable effect" on
United States commerce, 15 U.S.C. 6a(l), and that "such
effect gives rise to a claim" under the Sherman Act, 15
U.S.C. 6a(2).1 The district court explained that, although
respondents had alleged that "the conduct causing their
injuries resulted in a 'direct, substantial, and reasonably
foreseeable effect on U.S. commerce, they had not
alleged that the conduct's effect on United States
commerce gave rise to respondents' claims. Pet. App.
48a-49a. Because the district court found subject
matter jurisdiction lacking, the court did not reach
petitioners' alternative contention that respondents lacked
antitrust standing because they "fall outside the class of
persons whom the Sherman Act is designed to protect."
Id. at 53a, 54a.

3. A divided panel of the court of appeals reversed and
remanded. Pet. App. la-42a. The court observed that the
"Second and Fifth Circuits have split" on "the question
whether FTAIA requires that the plaintiffs claim arise
from the U.S. effect of the anticompetitive conduct." Id. at
14a-15a. The court explained (ibid.) that the Fifth Circuit
in Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d
420, 427 (2001) (Statoil), cert, denied, 534 U.S. 1127 (2002),
held that the plain text of the FTAIA bars claims that do
not stem from the conspiracy's anticompetitive domestic
effects. By contrast, the court explained (Pet. App.
16a-17a), the Second Circuit in Kruman v. Christie's
International PLC, 284 F.3d 384, 400 (2002), cert, dismissed,
124 S. Ct. 27 (2003), held that the FTAIA permits suit,
even when the plaintiff's injury does not arise from the
domestic effect of the conspiracy, as long as the "domestic
effect violate[s] the substantive provisions of the Sherman
Act."

The majority adopted a "view of the statute [that] falls
somewhere between the views of the Fifth and Second
Circuits, albeit somewhat closer to the latter than the
former." Pet. App. 20a. The majority rejected respondents'
argument --based on Kruman, 284 F.3d at 397-400--that
the "FTAIA only speaks to the question what conduct is
prohibited, not which plaintiffs can sue." Pet. App. 20a.
The majority nonetheless interpreted the phrase "gives
rise to a claim" in 15 U.S.C. 6a(2) as requiring only that
"the conduct's harmful effect on United States commerce
must give rise to 'a claim' by someone, even if not the
foreign plaintiff who is before the court." Pet. App. 4a.
The majority also found its interpretation supported by
the FTAIA's legislative history, id. at 24a-30a, and by its
view that asserting jurisdiction over respondents' claims would maximize deterrence of
international cartels by "forc[ing] the conspirator to
internalize the full cost of his anticompetitive conduct,"
id. at 32a.

The majority further held that respondents have
antitrust standing under Section 4 of the Clayton Act,
15 U.S.C. 15(a). Pet. App. 33a-37a. The court reasoned
that "the arguments that have already persuaded [the
court] that, where anticompetitive conduct harms
domestic commerce, FTAIA allows foreign plaintiffs
injured by anticompetitive conduct to sue to enforce the
antitrust laws similarly persuade us that the antitrust
laws intended to prevent the harm that the foreign
plaintiffs suffered here." Id. at 36a.

Judge Henderson dissented. Pet. App. 40a-42a. She
disagreed with the majority's interpretation of the
FTAIA, reasoning that the Fifth Circuit's reading was
"unambiguously" supported by the Act's text and
history. Id. at 40a.

SUMMARY OF ARGUMENT

A. The Foreign Trade Antitrust Improvements Act
provides that the Sherman Act shall not apply to
foreign conduct unless it has a requisite effect on
United States commerce and "such effect gives rise to a
claim" under the Sherman Act. 15 U.S.C. 6a(2). The
most natural reading of that statutory language is that
the required effect on United States commerce must
give rise to a claim by the particular plaintiff before the
court. In rejecting that interpretation, the court of
appeals reached the implausible conclusion that
Congress intended to permit suits in the United States
that seek redress for injuries that were sustained
entirely overseas and that arise out of purely foreign
commerce. That conclusion finds no support in the
Act's legislative history.

Such an expansive interpretation of the FTAIA
would greatly expand the potential liability for treble
damages in United States courts and would thereby
deter members of international cartels from seeking
amnesty from criminal prosecution by the United States
Government. The interpretation adopted by the court of appeals thus would
weaken the Department of Justice's criminal amnesty
program, which has served as an effective means of
cracking international cartels. That interpretation also
likely would damage the cooperative law enforcement
relationships that the United States has nurtured with
foreign governments and would burden the federal
courts with a wave of new international antitrust cases
raising potentially complex satellite disputes that turn
on hypothetical claims of persons not before the courts.

B. Antitrust standing principles independently
support the conclusion that foreign plaintiffs whose
claims arise solely from a conspiracy's effects on foreign
commerce cannot bring antitrust lawsuits in United
States courts. Section 4 of the Clayton Act, which
defines the class of persons who may maintain a
private damages action under the antitrust laws, does
not provide a treble damages remedy for all injuries
that result from an antitrust violation. Associated General
Contractors v. California State Council of Carpenters, 459
U.S. 519 (1983). This Court accordingly has limited the
types of plaintiffs who are proper parties to bring a
private antitrust action based on substantive antitrust
and other policy considerations.

Foreign plaintiffs whose claims arise from a
conspiracy's effects outside the United States are not
proper plaintiffs to invoke our antitrust laws. The focus
of the FTAIA, and the fundamental purpose of the
Sherman Act, are the protection of American
consumers and commerce. To provide antitrust relief to
respondents, even though their injuries have no
connection to a conspiracy's effects on United States
commerce, would divorce antitrust recovery from the
central purposes of the antitrust laws.

ARGUMENT

RESPONDENTS HAVE NO CLAIM UNDER THE
ANTITRUST LAWS

Section 1 of the Sherman Act declares illegal "[e]very
contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations." 15 U.S.C. 1.
Although this Court has articulated a general
presumption in other contexts that Congress intends its
laws to apply only within the territorial jurisdiction of the
United States, EEOC v. Arabian American Oil Co., 499 U.S.
244, 248 (1991), "it is well established by now that the
Sherman Act applies to foreign conduct that was meant
to produce and did in fact produce some substantial effect
in the United States." Hartford Fire Ins. Co. v. California, 509
U.S. 764, 796 (1993); Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 582-583 n.6 (1986); see United
States v. Nippon Paper Indus. Co., 109 F.3d 1, 4-6 (1st Cir.
1997) (holding that Sherman Act's criminal provisions
apply to wholly foreign conduct with intended and
substantial domestic effects), cert, denied, 522 U.S. 1044
(1998).

Consistent with that judicial construction of the
Sherman Act, Congress provided in the FTAIA that the
Sherman Act applies to foreign conduct when "(1) such
[foreign] conduct has a direct, substantial, and reasonably
foreseeable effect * * * on [United States domestic
commerce] * * * and (2) such effect gives rise to a claim"
under the Sherman Act. 15 U.S.C. 6a. It is not disputed in
this case that, under Section 6a, the Sherman Act applies
to a plaintiff's claim that arises from an illegal
conspiracy's anticompetitive effects on domestic
commerce, whether the plaintiff is located here or abroad,
or is a citizen of the United States or of another country.
Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978)
(holding that a foreign government may sue under the
Sherman Act); see Statoil, 241 F.3d at 427 n.22, 428 n.25.

The question presented in this case is whether the
Sherman Act permits respondents to recover treble
damages and attorney's fees under the United States'
antitrust laws for injuries that they sustained entirely
overseas and that arose out of purely foreign sales
transactions that had no substantial effect on United
States commerce. The court of appeals held that
respondents were entitled to seek such relief on the
theory that the foreign conduct by petitioners that
injured respondents was part of a global price-fixing
conspiracy that had anticompetitive effects in the
United States, and that those effects give rise to a claim
by some other person.

Such an expansive reach of the antitrust laws is not
justified by either the text or history of the FTAIA. The
result reached by the court of appeals is also highly
likely to have the perverse effect of undermining the
government's efforts to detect and deter international
cartel activity.

THE FTAIA REQUIRES A PLAINTIFF'S CLAIM TO
ARISE OUT OF A CONSPIRACY'S
ANTICOMPETITIVE EFFECT IN THE UNITED STATES

The Text Of The Statute Requires A Plaintiff
To Allege That His Claim Arises From The
Domestic Anticompetitive Effect Of A
Sherman Act Violation

a. The FTAIA governs whether a federal court may
hear a plaintiff's complaint alleging violations of the
Sherman Act involving foreign conduct. Section 6a(l)
provides that the Sherman Act extends to foreign
conduct only when it has a requisite effect on United
States commerce. 15 U.S.C. 6a(l). That such effect was
caused by the vitamin cartel has not been disputed. Pet.
App. 9a. A requisite effect is not enough to establish
that the Sherman Act applies to foreign conduct,
however, for Section 6a(2) imposes the further
condition that "such effect gives rise to a claim" under the Sherman Act.
15 U.S.C. 6a(2).2

It is a "fundamental principle of statutory construction"
that the meaning of statutory language "cannot be
determined in isolation, but must be drawn from the
context in which it is used." Textron Lycoming Reciprocating
Engine Div., AVCO Corp. v. UAW, 523 U.S. 653, 657 (1998)
(internal quotation marks omitted). The FTAIA's focus is
explicitly and only on the domestic effect of
anticompetitive conduct. Its text contains no hint of a
statutory purpose to permit recovery where the situs of
the plaintiff's injury is entirely foreign and that injury
arises exclusively from a price-fixing or market-allocation
conspiracy's effect on foreign commerce. Accordingly,
read in context, by far the most natural reading of Section
6a(2)'s requirement that "such effect gives rise to a claim"
under the Sherman Act is that the requisite
anticompetitive effect on domestic commerce must give
rise to a Sherman Act claim brought by the particular
plaintiff before the court.

The requirement that a plaintiff tie his own claim to a
conspiracy's domestic anticompetitive effect does not
conflict with a supposedly literal or "plain" meaning of
Section 6a(2), based on its use of the indefinite article "a,"
as has been suggested. See Kruman, 284 F.3d at 400;
Statoil, 241 F.3d at 432 (Higginbotham, J., dissenting). "The
word 'a' has varying meanings and uses," and "the
meaning depends on context." Black's Law Dictionary 1
(6th ed. 1990). And in particular, although "[a] (or an) is
called the indefinite article, [a]ctually, it is used to indicate a definite but
unspecified individual, as in a man in our town. * * *
When we wish to refer indefinitely to a single person or
thing we say any, as in any man in our town, any library
book." Bergen Evans & Cornelia Evans, A Dictionary of
Contemporary American Usage 3 (1957). Thus, the article
"a" is far too slender a reed on which to rest the
conclusion that Congress intended to give Section 6a(2)
an unprecedented world-wide scope whenever any
person in the domestic commerce of the United States
would have any claim under the Sherman Act based on
the same conduct.

Moreover, the article "a" in Section 6a(2) is
immediately followed by the specific term "claim." 15
U.S.C. 6a(2). Congress surely intended a federal court
to examine not any hypothetical "claim," but a claim
that is being asserted by the party seeking to invoke the
jurisdiction of the court in the case actually pending
before it. In other words, the reference to "a claim"
presupposes, but leaves unstated, that the "claim" to
which the conduct in question "gives rise" is one
advanced by the plaintiff. In this respect, Section 6a(2)
is just like Rule 12(b)(6) of the Federal Rules of Civil
Procedure, which provides for dismissal of a complaint
for "failure to state a claim on which relief can be
granted." Surely Rule 12(b)(6) refers to "a claim"
asserted by the plaintiff in the case, not by some other
hypothetical person not before the court. Accordingly,
to recognize jurisdiction in a federal district court under
the United States' antitrust laws over a private action
lacking the requisite "effect" on United States
commerce--on the premise that the requirement of
such "a claim" might be satisfied by some third
party--"would not be consistent with the 'sense of the
thing/ and would confer upon [the court] jurisdiction
beyond what 'naturally and properly belongs to it.'"
Heckler v. Edwards, 465 U.S. 870, 879 (1984) (citation
omitted). Instead, the critical inquiry under Section
6a(2) "is, regardless of the situs of the plaintiff's injury,
did that injury arise from the anticompetitive effects on United States commerce?" Statoil,
241 F.3d at 427 n.22.3

For similar reasons, the Second Circuit in Kruman, 284
F.3d at 397-400, erred in concluding that the only
relevant inquiry is whether the conduct that caused the
anticompetitive domestic effect violated the substantive
provisions of the antitrust laws, such that the
government would have a valid claim for injunctive
relief under Section 4 of the Sherman Act, 15 U.S.C. 4.
Under that view, the phrase "gives rise to a claim" adds
nothing, because the United States always has a claim
under Section 4 of the Sherman Act whenever that Act
is violated. Nor is there any suggestion in the FTAIA's
text that Congress intended the availability of relief
under the Sherman Act to turn on whether the
government would have a claim--particularly since the
FTAIA equally governs whether a private party may
seek relief, and a price-fixing conspiracy that violates
Section 1 of the Sherman Act, 15 U.S.C. 1, does not
"give[] rise" to a private "claim" under the Sherman Act
in the absence of injury to the particular plaintiff. See 15
U.S.C. 15(a) (providing for private right of action to
"any person injured in his business or property"). In
short, as the court of appeals in this case pointed out,
"[t]he view that FTAIA must be taken to refer only to
defendant's conduct tends to ignore the fact that FTAIA does refer on its face to the conduct's effect
giving rise to a claim"--which even the court
acknowledged "arguably refers to a plaintiffs injury. "
Pet. App. 21a.

Thus, when the court of appeals recognized that "the
usual meaning of 'a claim' is a private action," Pet. App.
22a, it should have further recognized that, in the
context of a statute governing a private civil action, the
words "a claim" are most naturally understood to refer
to a claim that is actually being asserted in the civil
action arising under that statute. Indeed, we are not
aware of any statutory scheme that makes the
determination of statutory coverage turn on whether a
person not before the court, i.e., a hypothetical plaintiff
in some other civil action, has a claim. Ordinarily, a
litigant "must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or
interests of third parties." Valley Forge Christian Coll. v.
Americans United for Separation of Church & State, Inc.,
454 U.S. 464, 474 (1982) (quoting Warth v. Seldin, 422
U.S. 490, 499 (1975)). "This is generally so even when
the very same allegedly illegal act that affects the
litigant also affects a third party." United States Dep't of
Labor v. Triplett, 494 U.S. 715, 720 (1990).

b. The implausibility of the panel's expansive
interpretation of Section 6a(2) is confirmed by the fact
that it would produce results that Congress could not
have intended. The panel's holding would open United
States courts to suits that are strikingly localized to
foreign countries. For example, under the panel's
holding, a buyer in Nigeria could file suit in the United
States against its own Nigerian supplier if that supplier
was a member of an international cartel, simply by
alleging (and being able to prove if contested, see, p. 22,
infra) that some unnamed third person who was
injured by the same cartel in United States commerce
would have a claim under the Sherman Act.

In other words, under the panel's reading of Section
6a(2), once any person is determined to have a claim
arising from an injury resulting from the domestic anticompetitive
effects of a conspiracy, any foreign purchaser can
piggyback on that claim and sue for treble damages in
United States courts, even when that purchaser is "injured
solely by that [conspiracy's] effect on foreign commerce."
Pet. App. 4a. Consider, for example, an international
price-fixing cartel with wholly foreign members that had
annual foreign sales of $2 billion to 50 foreign customers,
and annual sales in the United States of $1 million to one
customer. Because the domestic customer could sue based
on the conspiracy's domestic effects, all 50 foreign
customers also could bring a claim under the Sherman
Act, "even if those plaintiffs had no commercial
relationship with any United States market and their
injuries were unrelated to the injuries suffered in the
United States." Statoil, 241 F.3d at 427-428.

No decision pre-dating the FTAIA has been cited that
permitted such a suit. Statoil, 241 F.3d at 429 ("[W]e have
found no case in which jurisdiction was found in a case
like this--where a foreign plaintiff is injured in a foreign
market with no injuries arising from the anticompetitive
effect on a United States market."). Congress passed the
FTAIA to "exempt from the Sherman Act export
transactions that did not injure the United States
economy," Hartford Fire Ins. Co., 509 U.S. at 796 n.23, and
to create a "single, objective test--the 'direct, substantial,
and reasonably foreseeable effect' test"--to "serve as a
simple and straightforward clarification of existing
American law," H.R. Rep. No. 686, 97th Cong., 2d Sess. 2
(1982) (House Report) (emphasis added). It is highly
doubtful that the same Congress that intended to codify
limits on the extraterritorial reach of the antitrust laws
intended at the same time to bring about the sweeping
expansion that the court of appeals' decision would
accomplish.

c. The statutory text should also be read in light of
background principles concerning the extraterritorial
reach of United States law. As noted above (see p. 7,
supra), although this Court has adopted a general presumption
that Congress intends for its laws to apply only within
the territorial jurisdiction of the United States, it is well
established--quite apart from the FTAIA--that the
Sherman Act applies to foreign conduct that was meant
to and did produce some substantial effect in the
United States. And the FTAIA ratifies that fundamental
proposition by providing that the Sherman Act applies
to foreign conduct that has a "direct, substantial, and
reasonably foreseeable effect" on the domestic
commerce of the United States, if that effect in turn
"gives rise to a claim" under the Sherman Act. 15 U.S.C.
6a. The Sherman Act and the FTAIA have thus
supplanted any general background presumption
against extraterritoriality within those fields involving
effects on domestic commerce. It does not follow,
however, that general background principles are
entirely irrelevant in considering the further question
presented in this case.

Here, respondents' alleged injuries do not flow from
any effect of petitioners' conduct on the domestic
commerce of the United States (e.g., from sales to
customers in the United States), which would fall
within the rubric of Hartford Fire Insurance Co. and the
terms of the FTAIA. They instead flow from sales
transactions that occurred outside the United States,
either entirely within one foreign country or between a
seller in one foreign country and a purchaser in
another. To apply the Sherman Act to those
transactions would extend the Act one significant step
further than this Court's Sherman Act decisions
culminating in Hartford Fire Insurance Co. and anything
required by the terms of the FTAIA. Such an
application would regulate not merely the defendants'
conduct (their conspiracy to fix prices and allocate
markets) and the remedies for persons injured by that
conduct in United States commerce (persons who
bought vitamins from those defendants at
supracompetitive prices in domestic sales transactions).
It also would subject wholly foreign sales transactions
having no significant effect on United States commerce to regulation under our
antitrust laws, by affording a Sherman Act claim to
injured purchasers of vitamins in foreign countries
against the defendants who charged them
supracompetitive prices in those foreign transactions. See
San Diego Bldg. Trades Council v. Gar-mon, 359 U.S. 236,
247 (1959) ("[Regulation can be as effectively exerted
through an award of damages as through some form of
preventive relief.").

In Foley Brothers v. Filardo, 336 U.S. 281 (1949), this
Court held that a federal law requiring employers to pay
overtime for work in excess of an eight-hour day did not
apply in a foreign country. Because the statute and
associated cause of action were motivated by "concern
with domestic labor conditions," the Court saw no reason
to apply them to conditions in foreign countries. Id. at 286.
The Court concluded that "[a]n intention so to regulate
labor conditions which are the primary concern of a
foreign country should not be attributed to Congress in
the absence of a clearly expressed purpose." Ibid.
Similarly, in EEOC v. Arabian American Oil Co., the Court
declined to apply Title VII to employment in a foreign
country in the absence of "clearer evidence of
congressional intent." 499 U.S. at 255. In both cases, the
Court's conclusion was reinforced by its determination
that to subject such transactions or relationships in foreign
countries to United States law would risk friction with the
foreign governments concerned. So too here, in the
absence of a clearer expression of congressional intent, the
Court should not interpret Section 6a(2) to afford a
private claim under the Sherman Act to foreign
purchasers in wholly foreign sales transactions, which
"are the primary concern of a foreign country" when such
sales have no significant effect on our commerce. Foley
Bros., 336 U.S. at 286; see, e.g., McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 19, 21
(1963); Romero v. International Terminal Operating Co., 358
U.S. 354, 382-383 (1959).

The FTAIA's Legislative History Does Not Reveal An
Intent To Open United States Courts To Claims
Seeking Redress For Foreign Injuries Sustained As A
Result Of Foreign Conduct

The court of appeals' majority acknowledged that
portions of the FTAIA's legislative history could be
read to support the government's interpretation of the
Act, Pet. App. 24a, 29a, but concluded that, on the
whole, the legislative history favors an expansive
interpretation because nothing in the history
affirmatively "denigrate[s] or exclude[s]" an expansive
interpretation, ibid. The majority thus assumed that, in
the absence of express legislative history to the
contrary, Congress must have intended the more
expansive interpretation--a dubious analytical
approach to begin with for a statute that was prompted
in significant part by a perceived need to clarify the
limitations of the Sherman Act's reach over international
transactions. House Report 2.

More fundamentally, however, the majority looked
for an answer to the wrong question in its review of the
legislative history. Because application of the Sherman
Act to wholly foreign sales transactions having no
substantial effect on United States commerce would be
contrary to the most natural reading of the text of the
FTAIA and to the background presumption against
application of United States laws to transactions in
foreign countries, the proper question is whether the
legislative history contains a clearly expressed intent to
extend the reach of the Sherman Act in that manner.
There is no suggestion, much less a clear expression, of
such an intent. See Statoil, 241 F.3d at 429 n.28
("Nothing is said about protecting foreign purchasers
in foreign markets.") (quoting In re Microsoft Corp.
Antitrust Litig., 127 F. Supp. 2d 702, 715 (D. Md. 2001)).

The only explicit mention of suits by foreign
purchasers, and the deterrent effect such suits might
have, is a discussion in the House Report of this Court's
decision in Pfizer, supra. House Report 10. Pfizer,
however, addressed neither the extraterritorial reach of the antitrust laws
nor the extent to which a plaintiff's claim must have
some connection to United States commerce. Rather,
Pfizer held that a foreign government that purchased
goods from United States companies is a "person"
"entitled to sue for treble damages under the antitrust
laws to the same extent as any other plaintiff." 434 U.S.
at 320. Although the Court in Pfizer observed that "suits
by foreigners who have been victimized by antitrust
violations clearly may contribute to the protection of
American consumers," id. at 314, the Court's decision in
Pfizer involved foreign purchasers injured by
anticompetitive domestic conduct and effects. Id. at 318
(observing that foreign governments "enter[ed] our
commercial markets as a purchaser of goods or
services"). The Court nowhere intimated that the
purposes of the antitrust laws would support the
availability of a private treble damages action when
foreign injury is sustained exclusively as a result of
foreign conduct, and the House Report's discussion of
Pfizer therefore carries no such intimation either.

The remainder of the legislative history, in fact, cuts
strongly against such an interpretation. For example,
the House Report states that the Act "preserves
antitrust protections in the domestic marketplace for all
purchasers, regardless of nationality or the situs of the
business." House Report 10 (emphasis added).4 Such
purchasers, however, are markedly different from
foreign purchasers who "bought [goods] exclusively
outside the United States" and whose injuries arise
exclusively from a conspiracy's foreign anticompetitive
effects. Pet. App. 8a. Other passages in the House
Report uniformly tie the application of United States
antitrust laws to foreign transactions to a domestic
anticompetitive effect.5

Finally, the explanation in the legislative history for
the language of Section 6a(2) as ultimately enacted
strongly undermines the court of appeals'
interpretation. The House Judiciary Committee
amended the relevant bill, as proposed by the
Subcommittee, to add Section 6a(2) with language that
provided that "(2) such effect is the basis of the
violation alleged." House Report, 16; H.R. 5235, 97th
Cong., 2d Sess. § 2 (Aug. 2, 1982). Absent that
subsection, the House Report explained, a plaintiff
might have been able to bring suit in federal court
"merely by proving a beneficial effect within the United
States, such as increased profitability of some other
company or increased domestic employment." House
Report 11. The Report explained that the language the
Committee added would "require that the 'effect'
providing the jurisdictional nexus must also be the basis
for the injury alleged under the antitrust laws." Id. at 11-12
(emphasis added). That passage unambiguously
contemplates that the plaintiffs claim must be based on
injury resulting from the domestic effect of the defendant's conduct in
violation of the Sherman Act.

As contemplated in the separate statement by
Chairman Rodino (see House Report 18), Section 6a(2),
as added by the Committee, was subsequently
amended to require that "such effect gives rise to a
claim." The Chairman stated that "[t]he substituted
language accomplishes the same result as the
Committee version" but was preferable "because the
Committee language may suggest that an effect, rather
than conduct, is the basis for a violation." Ibid. Thus,
Section 6a(2) as finally enacted was intended to
accomplish the same result as the language the House
Report described as requiring that the "effect" of the
defendant's conduct on United States commerce "must
also be the basis for the injury alleged"--i.e., by the
plaintiff--"under the antitrust laws." Id. at 2. The
decision of the court of appeals cannot be reconciled
with that expression of congressional intent.

Important Policy Considerations Grounded In The
Antitrust Laws Significantly Undermine The Court
Of Appeals' Interpretation

a. The court of appeals' interpretation of the FTAIA
would substantially interfere with the primary
enforcement of the antitrust laws by the United States
Government. Price-fixing conspiracies, including those
operating globally, are inherently difficult to detect and
prosecute. Cooperation by one of the conspirators,
through provision of documents or testimony, is often
vital to law enforcement.

In light of those practical realities, the Antitrust
Division of the Department of Justice maintains a
robust amnesty program that offers strong incentives to
conspirators who voluntarily disclose their criminal
conduct and cooperate with prosecutors. Cf. Germany
Am. Br. Pet. Stage 14-16 (discussing EU and German
amnesty policies). Since 1993, the program has offered:
(1) automatic (i.e., not discretionary) amnesty to
corporations that come forward prior to an investigation and meet the program's requirements; (2)
the possibility of amnesty even if cooperation begins
after an investigation is underway; and (3) if a
corporation qualifies for automatic amnesty, all
directors, officers, and employees who come forward
and agree to cooperate also receive automatic amnesty.
4 Trade Reg. Rep. (CCH) If 13,113 (Aug. 10, 1993).
Critically, amnesty is available only to the first
conspirator to break ranks with the cartel and come
forward. The incentives, transparency, and certainty of
treatment established by the program set up a "winner
take all" dynamic that sows tension and mistrust
among cartel members and encourages defection from
the cartel.

The amnesty program has been extremely valuable
to enforcement of the antitrust laws. The majority of the
Antitrust Division's major international investigations,
including the investigation of the vitamin cartel, have
been advanced through cooperation of an amnesty
applicant. The program has been responsible for
cracking more international cartels than all of the
Division's search warrants, secret audio or videotapes,
and FBI interrogations combined. Since 1997,
cooperation from amnesty applications has resulted in
scores of criminal convictions and more than $1.5
billion in criminal fines.

The court of appeals' interpretation of Section 6a
would undermine the effectiveness of the government's
amnesty program. Even those conspirators who come
forward and receive amnesty from criminal prosecution
still face exposure to private treble damage actions
under 15 U.S.C. 15(a). Potential amnesty applicants
therefore weigh their civil liability exposure when
deciding whether to avail themselves of the
government's amnesty program. The court of appeals'
interpretation would tilt the scale for conspirators
against seeking amnesty by expanding the scope of
their potential civil liability. Faced with joint and
several liability for co-conspirators' illegal acts all over
the world, a conspirator could not readily quantify its
potential liability. The prospect of civil liability to all global victims would provide
a significant disincentive to seek amnesty from the
government.

From a practical standpoint, moreover, the court of
appeals' analysis of deterrence is unsound because its
focus is on private lawsuits that often follow the
exposure of a cartel by the government. Such lawsuits
are possible, of course, only if the cartel is discovered in
the first place. A private action "supplements
government enforcement of the antitrust laws; but it is
the Attorney General and the United States district
attorneys who are primarily charged by Congress with
the duty of protecting the public interest under these
laws." United States v. Borden Co., 347 U.S. 514, 518
(1954).

In the government's judgment, the amnesty program,
by creating a high risk of defection and exposure,
deters cartel behavior more effectively than an increase
in private litigation after the cartel has been exposed. It
follows that deterrence is best maximized, and United
States consumers are best protected, not by maximizing
the potential number of private lawsuits, but by
encouraging conspirators to seek amnesty and thus
expose cartels in the first place.

b. The court of appeals' holding would also present
a risk of undermining the foreign relations of the
United States. Germany, a major trading partner of the
United States, expressed the view in its amicus brief at
the petition stage (at 9) that, "[b]y applying the United
States' antitrust laws in cases where neither the plaintiff
nor the alleged harm has direct effects on United States
commerce, the court of appeals' decision fails to respect
the fundamental right of foreign sovereigns to regulate
their own markets and industries." We understand that
other countries share that view. A scheme in which
United States courts would adjudicate treble damages
actions arising out of transactions that occur wholly in
foreign countries and that have no meaningful
connection to the United States would be likely to
result in tension with our trading partners and
attempts by foreign countries to enact statutory counter-reactions to any
judgments entered in such suits. See id. at 11-14 (describing
foreign "blocking" and "claw back" statutes and refusals to
enforce certain United States judgments). It is for reasons
such as these that the Court declined to apply United States
law to transactions in foreign countries in Arabian American
Oil Co. and Foley Brothers. See p. 15, supra.

Extension of the Sherman Act to foreign transactions
having no substantial relation to the United States might
also undermine the cooperative relationships that this
Nation's antitrust agencies have forged with their foreign
counterparts in recent years. In the cartel area, conspiratorial
meetings frequently take place in more than one country,
witnesses may be scattered around the world, and
documentary evidence may be located in multiple
jurisdictions. Effective prosecution of an international cartel
requires the ability to gather evidence in different countries
and, frequently, coordination of investigative strategies
among multi-national enforcement agencies. Because the
United States and many of its foreign counterparts now
have similar views on the seriousness of cartel behavior (see
infra, p. 24), and effective mechanisms for coordinating
investigations, the United States has become more effective
in attacking conspiracies that straddle borders. But those
cooperative relationships depend on mutual good will and
reciprocity. If our foreign counterparts fear that the fruits of
their cooperation ultimately will be used to support
follow-on treble damage actions in the United States that
they perceive as inappropriate, cooperation may be strained,
to the overall detriment of international cartel enforcement.

c. The court of appeals' decision also would be likely to
burden the federal courts with a wave of antitrust cases
raising potentially complex satellite disputes. For cases in
which defendants contest whether the Sherman Act applies
to foreign conduct covered by the FTAIA, plaintiffs must
prove both that the challenged foreign conduct had the requisite effects on United States commerce and that those effects give rise to a claim. 15 U.S.C. 6a(l) and (2).

For plaintiffs whose injuries are sustained in United
States commerce, proof of the FTAIA's prerequisites
will overlap substantially with the merits of the
plaintiff's claim. But for plaintiffs entitled to sue under
the court of appeals' holding, i.e., plaintiffs whose
injuries are sustained entirely abroad and arise from
purely foreign transactions, the statutory inquiry would
turn on claims and persons not before the court. Courts
faced with such suits nonetheless would be forced to
adjudicate whether the challenged foreign conduct was
part of some global conspiracy, whether that global
conspiracy had the requisite effects on domestic
commerce, and whether some third person was injured
in United States commerce in such a way that gave rise
to a claim. Pet. App. 4a, 20a. Those questions might be
intensely factual, hotly disputed, and difficult to
resolve, particularly when the critical person and claim
are not before the court. The court of appeals' decision
thus would thrust upon federal courts the potential for
burdensome and protracted satellite litigation that is far
removed from the claim before the court.

d. The court of appeals failed to take into account any
of the foregoing considerations. It rather believed that
"forc[ing] the conspirator to internalize the full costs of
his anticompetitive conduct" would provide maximum
deterrence to cartels that injure American consumers.
Pet. App. 32a. The theoretical possibility of additional
deterrence contemplated by the court, however, would
come only at the expense of weakening the ability of
the United States government to discover the
wrongdoing in the first place. The court of appeals
similarly overlooked that the primary deterrent to
cartel activity is the threat of imprisonment and other
criminal penalties (especially when heightened through
the fear of exposure created by the amnesty program).
Scott D. Hammond, Director of Criminal Enforcement,
Antitrust Div., Detecting and Deterring Cartel Activity
Through an Effective Leniency Program (Brighton, England, Nov. 21-22,
2000) ("Based on our experience, there is no greater
deterrent to the commission of cartel activity than the risk
of imprisonment for corporate officials.") (available at
<http://www. usdoj.gov/atr/public/speeches/9928.htm>).
Criminal fines also can be substantial, as the penalties
imposed on the participants in the vitamin cartel
demonstrate. P. 2, supra.6

The court of appeals likewise failed to consider the
large number of antitrust statutes around the world that
deter and punish cartel activity. It is our understanding
that approximately 100 countries now have
comprehensive antitrust laws, and at least one-third of
those, including most of the major industrialized
countries, allow private lawsuits to recover damages for
antitrust violations or provide for damages in conjunction
with administrative proceedings.7 Private civil suits have
been filed against the vitamin cartel in Canada, the United
Kingdom, Germany, Belgium, and the Netherlands, and
class actions have been filed in Canada, Australia, and
New Zealand. Pet. 5. At least three of the four home
countries of respondents have antitrust laws that prohibit price-fixing and laws that authorize private
civil actions by persons who suffer damages from
antitrust violations.8 These countries have enacted the
remedies that their governments consider appropriate,
and United States law should not promote forum
shopping that undermines those sovereign judgments.

PLAINTIFFS WHOSE INJURIES ARE NOT TIED TO A
CONSPIRACY'S ANTICOMPETITIVE EFFECT ON
UNITED STATES COMMERCE LACK ANTITRUST
STANDING

Even if the Court were to conclude, contrary to our
submission in Point A, that the FTAIA does not limit
the application of the Sherman Act itself in a manner
that excludes claims arising from wholly foreign sales
transactions with no significant effect on United States
commerce, respondents' suit must fail because the
Clayton Act does not in any event offer a cause of
action in these circumstances.

1. Section 4 of the Clayton Act, 15 U.S.C. 15(a),
provides that "any person who shall be injured in his
business or property by reason of anything forbidden
in the antitrust laws" may sue for treble damages and
attorney's fees. Despite that broad language, Section 4
never was intended "to encompass every harm that can be attributed directly
or indirectly to the consequences of an antitrust violation."
Associated General Contractors, 459 U.S. at 529; accord
Verizon Communications, Inc. v. Law Offices of Curtis V.
Trinko, 124 S. Ct. 872, 877 (2004) (concurring opinion of
Stevens, J). Thus, even if an antitrust plaintiff has suffered
harm sufficient to satisfy the constitutional standing
requirement of "injury in fact," the court must make a
further determination whether the plaintiff has "antitrust
standing," i.e., "whether the plaintiff is a proper party to
bring a private antitrust action." Associated General
Contractors, 459 U.S. at 535 n.31.

This Court accordingly has established several
limitations on antitrust standing based on substantive
antitrust and policy considerations. For instance, in
Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court
held that States could not sue in their parens patriae
capacity for damages to their general economy. Similarly,
in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), the Court
held that the antitrust laws do not provide relief to
indirect purchasers who paid an enhanced price because
their suppliers had been victimized by a price-fixing
conspiracy. In Brunswick Corp. v. Pueblo Bowl-0-Mat, Inc.,
429 U.S. 477, 489 (1977), the Court held that a plaintiff
must show "antitrust injury, which is to say injury of the
type the antitrust laws were intended to prevent and that
flows from that which makes the defendants' acts
unlawful." And in Associated General Contractors, 459 U.S.
at 545, the Court found that a union lacked antitrust
standing to sue a multi-employer association for alleged
antitrust violations, after considering "the nature of the
Union's injury, the tenuous and speculative character of
the relationship between the alleged antitrust violation
and the Union's alleged injury, the potential for
duplicative recovery or complex apportionment of
damages, and the existence of more direct victims of the
alleged conspiracy."

Those decisions establish that antitrust standing should
be denied to a plaintiff whose suit would "divorce[] antitrust
recovery from the purposes of the antitrust laws without a
clear statutory command to do so." Brunswick, 429 U.S. at
487; accord Associated General Contractors, 459 U.S. at 538
(observing that the plaintiff should be seeking to redress
injuries that are tied to the central purposes of the antitrust
laws). In analogous circumstances, this Court has
interpreted the Administrative Procedure Act, 5 U.S.C. 701
et seq., and other statutes to deny standing when the
plaintiffs interests do not fall within the "zone of interests"
protected by the statute. E.g., National Credit Union Admin, v.
First Nat'l Bank & Trust Co., 522 U.S. 479, 488 (1998); Bennett
v. Spear, 520 U.S. 154, 163 (1997); see Malamud v. Sinclair Oil
Corp., 521 F.2d 1142, 1152 (6th Cir. 1975) (applying zone of
interests analysis to the antitrust laws).

2. Foreign purchasers in transactions having no
substantial connection to United States commerce are not
proper plaintiffs under Section 4 of the Clayton Act. As
explained above, there is a background presumption that
Congress did not intend to regulate such transactions in
foreign countries under United States law, and nothing in
the Clayton Act itself suggests a congressional intent to
afford a treble damages remedy. The FTAIA did not amend
the Clayton Act, and nothing in the text or history of the
FTAIA's amendment of the Sherman Act suggests a
congressional intent, much less a "clear statutory command"
(Brunswick, 429 U.S. at 487), to displace the background
presumption and create a treble damages remedy under the
Clayton Act for a wide class of global plaintiffs whose
injuries have no connection to United States commerce. To
the contrary, the House Report makes clear (at 11) that the
FTAIA was "not intend[ed] to alter existing concepts of
antitrust injury or antitrust standing." And to conclude, as
did the court of appeals, that such a class of plaintiffs may
sue based on the rights of third parties who were injured in the United States conflicts
with basic principles of standing generally. See p., 12,
supra.

The court of appeals reasoned that "[t]he foreign
plaintiffs' paying of inflated prices in foreign
commerce" was a loss that the antitrust laws were
designed to prevent. Pet. App. 35a. The fact that
respondents were direct purchasers victimized by a
price-fixing conspiracy, however, does not mean that
respondents suffered the kind of injury contemplated
by Section 4 of the Clayton Act when their particular
injuries did not arise from anticompetitive effects on
United States commerce. Under the FTAIA, the conduct
of petitioners at issue in this case was unlawful under
the Sherman Act only because of its anticompetitive
effect on domestic United States commerce.
Respondents' injury, which is not based on any such an
effect, does not "flow[] from that which makes the
defendants' acts unlawful," Brunswick Corp., 429 U.S. at
489, and therefore is outside the zone of interests
protected by the antitrust laws.

"American antitrust laws do not regulate the
competitive conditions of other nations' economies."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 582 (1986). Rather, the central purpose of the
antitrust laws is to protect consumers, competition, and
commerce in the United States. "Congress' foremost
concern in passing the antitrust laws was the protection
of Americans." Pfizer, 434 U.S. at 314; see 1A Phillip E.
Areeda & Herbert Hovenkamp, Antitrust Law 1 272h, at
358 (2d ed. 2000) ("[The FTAIA] makes clear that the
concern of the antitrust laws is protection of American
consumers and American exporters, not foreign
consumers or producers."); Turicentro, S.A. v. American
Airlines Inc., 303 F.3d 293, 307 (3d Cir. 2002) ("Plaintiffs'
injuries occurred exclusively in foreign markets. They
are not of the type Congress intended to prevent
through the [FTAIA] or the Sherman Act.").
Accordingly, to award treble damages and attorney's
fees to a class of foreign plaintiffs whose injuries arise
exclusively from a conspiracy's foreign anticompetitive effects would "divorce antitrust
recovery from the purposes of the antitrust laws
without a clear statutory command to do so." Brunswick
Corp., 429 U.S. at 487; Matsushita, 475 U.S. at 582-284 &
nn. 6 & 7 (antitrust damages unavailable except where
foreign conduct caused plaintiffs' injury in American
market).9

The conclusion that the Clayton Act does not afford
respondents a cause of action is reinforced by the fact
that private suits such as this would undermine
enforcement of the Sherman Act by the United States
Government, which is primarily responsible for
protecting American consumers and markets. All of the
lower court decisions interpreting Section 6a(2), i.e., this
case, Kruman and Statoil, have involved private actions
by foreign plaintiffs that followed directly on the heels
of criminal or civil enforcement actions initiated by
United States and foreign antitrust authorities. As
explained previously, the United States' experience is
that the most effective method of enforcement features
an amnesty program that offers strong incentives to
conspirators to break ranks with and expose their
cartels by seeking amnesty from criminal prosecution.
Greatly expanding the scope of private follow-on
litigation would weaken the incentives to seek amnesty,
and ultimately weaken the protection of United States
consumers by making international cartels difficult to
detect. See pp. 19-21, supra. Opening our courts to suits
with no connection to United States commerce also
would risk undermining the relationships with foreign
governments that are important to the United States' enforcement efforts and would impose on
federal courts potentially burdensome and complex
antitrust suits brought by plaintiffs around the globe
based on transactions that took place overseas. See pp.
21-23, supra; cf. Associated General Contractors, 459 U.S. at
545 ("massive and complex damages litigation not only
burdens the courts, but also undermines the effectiveness
of treble-damages suits"). Those considerations, and the
fact that such suits are far removed from the core policy
of the antitrust laws to protect commerce in the United
States, establish that respondents lack standing to invoke
the treble damages remedy of Section 4 of the Clayton
Act.

CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

William H. Taft, IV Legal Adviser
United States Department
of State
Washington, D.C. 20520

Sections 1 to 7 of this title shall not apply to conduct involving
trade or commerce (other than import trade or import
commerce) with foreign nations unless--

such conduct has a direct, substantial, and reasonably
foreseeable effect--

on trade or commerce which is not trade or commerce

with foreign nations, or on import trade or import commerce
with foreign nations; or

on export trade or export commerce with foreign

nations, of a person engaged in such trade or commerce in the
United States; and

such effect gives rise to a claim under the provisions
of sections 1 to 7 of this title, other than this section.

If sections 1 to 7 of this title apply to such conduct only because
of the operation of paragraph (1)(B), then sections 1 to 7 of this
title shall apply to such conduct only for injury to export
business in the United States.

2 The court of appeals treated the FTAIA as setting forth a
threshold requirement for subject matter jurisdiction rather than a
substantive element of a Sherman Act claim. Pet. App. 8a; see
generally United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942,
949-951 (7th Cir.) (en bane), cert, denied, 124 S. Ct. 533 (2003). That
issue has no bearing on the question of statutory interpretation
before the Court, i.e., whether the Sherman Act applies to foreign
conduct when a claim by the plaintiff does not arise from a
conspiracy's effect on United States commerce.

3 Contrary to respondents' contention, the government's reading of the
statute does not mean that only injury that occurs in the United States
comes within the terms of the FTAIA. Br. in Opp. 20-21. Rather, the text
of the FTAIA requires that any anticompetitive injury, whether here or
abroad, arise from the conspiracy's requisite effect on domestic
commerce. See, e.g., Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148
F.3d 1080, 1086-1087 (B.C. Cir. 1998) (while the situs of injury was
overseas, plaintiff's claim arose from a conspiracy's effect on the United
States advertising market). Moreover, the federal agencies charged with
the responsibility of enforcing the antitrust laws "do not discriminate in
the enforcement of the antitrust laws on the basis of the nationality of the
parties." U.S. Dep't of Justice & Federal Trade Comm'n, Antitrust
Enforcement Guidelines For International Operations § 2 (1995), reprinted in
4 Trade Reg. Rep. (CCH) If 13,107, at 20,589-20,592 (Apr. 5,1995).

4 There was no Senate Report on the bill, and the brief discussion
in the conference report, H.R. Conf. Rep. No. 924, 97th Cong., 2d
Sess. 29-30 (1982), sheds no light on the issue.

5 See, e.g., House Report 5 ("Since Judge Learned Hand's opinion in United States v. Aluminum Co. of America, 148 F.2d 416, 443-444 (2d Cir.
1945), it has been relatively clear that it is the situs of the effects as
opposed to the conduct, that determines whether United States antitrust
law applies."); ibid, (quoting Antitrust Div., DOJ, Antitrust Guide to
International Operations 6-7 (1977) ("[I]t would be a miscarriage of
Congressional intent to apply the Sherman Act to 'foreign activities
which have no direct or intended effect on United States consumers or
export opportunities."); id. at 7 (bill would "reinforc[e] the fundamental
commitment of the United States to a competitive domestic
marketplace"); id. at 9-10 ("A transaction between two foreign firms, even
if American-owned, should not, merely by virtue of the American
ownership, come within the reach of our antitrust laws. Such foreign
transactions should, for purposes of this legislation, be treated in the
same manner as export transactions-- that is, there should be no
American antitrust jurisdiction absent a direct, substantial and
reasonably foreseeable effect on a domestic consumer or a domestic
competitor.").

6 Persons who violate the Sherman Act are subject to a maximum
statutory term of imprisonment of three years, a statutory
maximum corporate fine of $10 million, and a statutory maximum individual fine
of $350,000. 15 U.S.C. 1. Fines may exceed those amounts however,
as defendants may be fined up to twice the gross gain from the offense
or twice the gross loss to victims of the offense if those amounts exceed the
Sherman Act's maximum fine. 18 U.S.C. 3571. Defendants may also
be ordered to pay restitution in the full amount of the victim's loss. 18
U.S.C. 3663, 3663A; U.S.S.G. § 8B1.1.

8 Australia Trade Practices Act § 45A (agreement is unlawful if it has
purpose or effect of "fixing, controlling or maintaining * * * the price for
* * * goods or services") and Federal Court of Australia Act § 33C, et seq.
Panama Const, art. 290 and Law No. 29 of 1996 arts. 5, 11(1) (per se
violations include any agreement that involves "to fix, manipulate,
arrange or impose the sale or purchase price of goods or services or to
exchange information with the same purpose or effect"), 142 (allowing
suit by "any affected party"); Law of Ukraine On Restriction of
Monopolism and Prevention of Unfair Competition in Business Activities
(1992) and Law of Ukraine On Protecting the Economic Competition art.
55 (2001). The situation in Ecuador is less clear, but it does appear that
damages caused by cartel behavior (which appears to be illegal in
Ecuador, Grim. Code arts. 67, 363) may be available under Ecuador's
general consumer protection and contract laws. Ecuador Organic Law for
Consumer Protection arts. 2, 51, 70, 87; Civ. Code arts. 2211, 2241,2256.

9 The court of appeals viewed respondents as proper plaintiffs
because respondents' claimed injuries, in the court's view, suffered
none of the defects mentioned in Associated General Contractors, supra.
Pet. App. 36a-37a. The factors mentioned in that decision, however,
simply persuaded the Court that the plaintiffs in that particular case
lacked standing. The Court did not intimate that those factors were
exclusive, and explicitly stated that "[a] number of other factors may
be controlling" in determining whether a plaintiff has antitrust
standing. 459 U.S. at 538.